HLA Hart and Modern Legal Positivism
H.L.A. Hart is one of the important names in the history of legal theories. In our class reading, Hart talked about past strict positivists and changed legal positivist theory for modern thinking and experience. Hart also talked about Austin and Bentham, who were two important figures in Utilitarianism. Hart agreed with some of their thought but disagreed with other aspects of their thought. Because of his examination, and sometimes disagreement and changes, of Positivism and Utilitarianism, H.L.A. Hart is famous for a new way of thinking about both schools of thought.
The Key Concept from the Text and an Example
The key concept from the text is a more modern way of looking at law and morality because Hart is a legal positivist but he is a modern legal positivist. Hart believes that the "point of intersection between law and morals or that what is and what ought to be are somehow indissolubly fused or inseparable though the positivists denied it." For example, Hart says that people are not giant land crabs with shells that cannot be penetrated and who can somehow get their food from the air and not be hurt by each other. Until people become like those giant land crabs, there must be laws that are against violence and that set minimum property rights. Hart believes that those laws "overlap" with basic moral principles against murder, violence and theft and that all legal systems "coincide" with morality at such vital points.
Hart wrote several important works, including "Positivism and the Separation of Law and Morals" for the Harvard Law Review. In "Positivism and the Separation of Law and Morals," Hart looked at old and new Positivism and the Utilitarian beliefs of Austin and Bentham. An earlier legal positivist believed that it is only a coincidence if legal rights and moral rights are connected. Legal rights do not depend on morality or "natural law" at all for a legal positivist. One example that Hart uses is "the core...
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